Equal means equal, unless you’re dealing with the Trump administration. And especially when you’re dealing with immigration. But this, however, is going to require a bit of set-up for me to explain.
In 2015 , the Supreme Court of the United States ruled in Obergefell v Hodges that the Constitution protected the right of same-sex couples to marry, and “laws …. are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.”
Meet Los Angeles residents Andrew and Elad Dvash-Banks. Andrew’s a dual U.S./Canadian citizen, Elad has Israeli citizenship. They met and fell in love in Israel, but because of the Defense of Marriage Act chose to settle in Canada, marrying there in 2010 because they could not here.
In 2015, still living in Canada, they decided to start a family. Using assisted reproductive technology , they each donated sperm to create embryos using eggs from an anonymous donor, contracting with a gestational surrogate to carry a maximum of two embryos to term, one with the genetic material from each father. In September 2016, two sons were born — Aiden and Ethan — and Andrew and Elad did all the necessary paperwork to be listed as their legal parents on the birth certificates.
Four months later, they appeared at the U.S. Consulate in Toronto to apply for U.S. Citizenship for their children. As the legal children of a U.S. citizen born abroad, both Aiden and Ethan should have been declared citizens at birth, per Section 301(g) of the Immigration and Nationality Act:
The following shall be nationals and citizens of the United States at birth….
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years
The consular officer, however, determined that only Aiden, who was genetically related to Andrew, was a citizen at birth; his twin brother Ethan was not. Andrew sued, on behalf of himself and Ethan, thanks to the great lawyers at Immigration Equality.
On February 21, 2019, a federal judge in Los Angeles ruled that the State Department’s decision was wrong, and that Ethan was a citizen at birth as well. You can read that decision here. In short, Judge Walter (nominated to the Court by President George W. Bush) explains,
Section 301 does not require a person born during their parents’ marriage to demonstrate a biological relationship with both of their married parents. [Past decisions] make clear that the word “parents” as used in Section 301(g) is not limited to biological parents and that the presumption of legitimacy that applies when a child is born to married parents – as codified in the INA – cannot be rebutted by evidence that the child does not have a biological tie to a U.S. citizen parent.… Nothing in Section 301 references a biological relationship requirement or suggests that in using the words “parent” or “born . . . of parents,” Congress intended to refer only to biological or genetic parents.
(This is distinguished from Section 309, which deals with out-of-wedlock births to a U.S. citizen father and non-citizen mother, where a blood relationship with the father and other factors are required for the child to have birthright citizenship.)
So, we’re all done, right? Aiden and Ethan, twin brothers with the same legal rights, and let’s just celebrate?
Nope. On Monday, the State Department announced they were appealing Judge Walter’s decision to the U.S. Court of Appeals for the Ninth Circuit. And when they lose there, they will no doubt seek review from the Supreme Court of the United States. As Aaron Morris Executive Director of Immigration Equality said this week:
Once again, the State Department is refusing to recognize Andrew and Elad’s rights as a married couple. The government’s decision to try to strip Ethan of his citizenship is unconstitutional, discriminatory, and morally reprehensible. This is settled law in the Ninth Circuit, which has already established that citizenship may pass from a married parent to a child regardless of whether or not they have a biological relationship.
Andrew and Elad Dvash-Banks added: “We’re outraged that the State Department is so intent on harming our family and the LGBTQ community. The fight is not over, and we will not rest until our family is treated fairly and equally. Nothing can tear us apart. The four of us are unbreakable.”
I’ll keep you posted.
